Court of Appeal.  2 FCR 69.
The applicant complained that she was being charged by her local authority for home care by reason of the fact she received disability living allowance. The receipt of DLA was a reason related to her disability (multiple sclerosis). She argued that this contravened Part 3 of the Disability Discrimination Act (the goods and services provisions) – she was being charged more for a reason related to her disability.
Because she received both DLA and income support, she fell within Band B on the charging scale and thus had to pay a charge for home care services. People receiving income support only would be categorised as Band A and pay no charge. Those who received no income support, whether or not they received any other allowance, were placed in Band C and paid the highest charge.
Held by the Court of Appeal: It could not be said on a construction of section 20(1)(a) DDA that the legislature could reasonably have thought to have in mind a case such as the present. The system was based on a means test. The Council were indifferent to receipt of disability living allowance as such. They looked at the applicant’s means rather than the source of her means. That was further endorsed by the fact that in category C, a person had to pay the full cost irrespective of disability.
The Court cited an example given by the Minister when Parliament was considering the DDA as a Bill. The Minister had commented that the DDA is drafted to cover indirect as well as direct discrimination – for example if dogs were not allowed to enter a cafe, effectively making blind people unable to enter, it would prima facie be indirect discrimination against blind people and unlawful. The Court of Appeal went on to comment, however, that if some dogs were admitted and some dogs were not, such indirect discrimination would not arise. “Here the charges bear differentially on persons with the same disability: persons in Band C and persons in Band B.” Accordingly the disability was categorically not the reason for the differential charges.
The link between the disability and the less favourable treatment seems to have been broken where the DLA money was mixed in with the person’s other means – the treatment was for a reason related to means rather than disability.
Despite what the Court says about admitting some dogs and not others, presumably even a policy that only dogs under a certain size (for example) could be admitted would fall to be adjusted for guide dogs under the reasonable adjustment provisions.
One could try to draw a principle from the case that practices bearing differentially on persons with the same disability are not less favourable treatment for a reason related to a disability. I think that would be premature, however, until the courts have considered further cases.